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HomeMy WebLinkAbout91-593 MatergiaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 15, 1991 Mr. Ralph A. Matergia, Esquire 91 -593 530 Main Street Stroudsburg, PA 18360 Re: Conflict, Public Official /Employee, Contracting, Zoning Hearing Board Member, Independent Contractor, Contract with Borough Council for Management Consulting Services. Dear Attorney Matergia: This responds to your letters of September 13, 1991 and September 19, 1991 in which you requested advice from the State Ethics Commission. Issue: Whether a Member of a Borough Zoning Hearing Board under the Public Official and Employee Ethics Law may contract as an independent contractor with Borough Council to provide certain management consulting services, with or without resigning from the Zoning Hearing Board. Facts: As Solicitor to the Borough of Stroudsburg, you seek the advice of this Commission on behalf of a Member of the Borough Zoning Hearing Board, upon which the Member serves without compensation. You specifically inquire whether Borough Council may contract and whether the Zoning Hearing Board Member may contract with the Borough Council to provide certain management consulting services as an independent contractor, given the individual's present status as a Member of the Borough Zoning Hearing Board. If determined that the Zoning Hearing Board Member may not contract with Borough Council for compensation to provide services as an independent contractor, you ask whether the individual may be relieved of this prohibition by a preceding resignation of membership on the Zoning Hearing Board. Discussion: As a Member of the Zoning Hearing Board for the Borough of Stroudsburg, the Zoning Hearing Board Member is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. Section 3(a) of the Ethics Law provides: Mr. Ralph A. Matergia, Esquire October 15, 1991 Page 2 Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal Mr. Ralph A. Matergia, Esquire October 15, 1991 Page 3 or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Finally, contracting restrictions as to public officials/ employees are provided in Section 3(f) of the Ethics Law as follows: Section 3. Restricted activities. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this Mr. Ralph A. Matergia, Esquire October 15, 1991 Page 4 subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Turning to your specific inquiries, it is initially noted that this Advice addresses this matter solely from the perspective of the Zoning Hearing Board Member. As a governmental body, the Borough Council is not subject to Sections 3(a) and 3(f) of the Ethics Law. In applying the above provisions of the Ethics Law to the instant matter from the perspective of the Zoning Hearing Board Member, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own personal financial gain. Thus, although the Zoning Hearing Board Member would not be prohibited under Section 3(a) of the Ethics Law from engaging in an activity which would involve providing management consulting services as an independent contractor to the Borough Council, the Zoning Hearing Board Member could not perform such private business using governmental facilities or personnel. In particular the Zoning Hearing Board Member could not use the telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material as a means, in whole or part, to carry out private business activities. In addition, the Zoning Hearing Board Member could not during government working hours, solicit or promote such business activity. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not prohibit the Zoning Hearing Board Member from entering into the private business arrangement. As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee would contract with his governmental body. The term "governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a Mr. Ralph A. Matergia, Esquire October 15, 1991 Page 5 nation, or a political subdivision thereof or an agency performing a governmental function. Under the above quoted definition, it is clear that the governmental body with which the Zoning Hearing Board Member is associated would be the Borough Zoning Hearing Board and would not extend to the Borough Council. The Borough Council would be considered a separate governmental body. Thus, the restrictions of Section 3(f) of the Ethics Law would have no application to a contract between the Zoning Hearing Board Member and the Borough Council. Having concluded that the restrictions of Section 3(f) are not implicated with regard to your inquiry, no further discussion of those restrictions is necessary for purposes of this Advice. Based upon all of the above, your second inquiry posing the contingency of the resignation of the Zoning Hearing Board Member, need not be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not considered herein is the applicability of the Borough Code. Conclusion: As a Zoning Hearing Board Member for the Borough of Stroudsburg, the Zoning Hearing Board Member is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude the Zoning Hearing Board Member from entering into a contract as an independent contractor with the Borough Council to provide certain management consulting services, but the Zoning Hearing Board Member could not use the authority of office to obtain such business and such business activity may not be conducted using governmental facilities or personnel. The Zoning Hearing Board Member's governmental body is the Zoning Hearing Board - not the Borough Council which is considered a separate governmental body. The restrictions of Section 3(f) of the Ethics Law would not apply to a contract between the Zoning Hearing Board Member and the Borough Council. Based upon the above determination, the second inquiry has not been addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all Mr. Ralph A. Matergia, Esquire October 15, 1991 Page 6 the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. cerely, Vincent . Dopko Chief Counsel